Vishnu Kumar and Others vs State and Others

Mohammad Rafiq, J.�This writ petition has been filed by petitioners Vishnu Kumar and K.K. Agarwal, who are working on the post of Senior Lecturer and are presently posted at Government Khaitan Polytechnic College, Jaipur and Government Polytechnic College, Neemrana, Alwar. Petitioners were initially appointed as such on ad hoc basis vide order dated 1.10.1993. However, it was thereafter that they were selected on regular basis by RPSC and were appointed by order dated 13.12.1995.

Petitioner No. 1 present in person contends that the All India Council for Technical Education (for short-''AICTE'') established under the Act of 1987 vide its notification dated 10.9.1989 provided for revision of pay scale of Teachers of Technical Institutions (Polytechnic) according to which a Lecturer on completion of eight years service on a particular post was entitled to promotion under Career Advancement Scheme. Petitioners were entitled to benefits of revised pay scales with effect from 1.1.1986. The Cabinet of the State on 18.9.1998 took a decision to adopt AICTE guidelines for revised pay scale and Career Advancement Scheme for teaching staff of the Government Polytechnic Colleges. The Rajasthan Civil Services (Revised Pay Scale for Government Polytechnic College Teachers) Rules, 1999 were promulgated pursuant to the aforesaid decision of the cabinet. It was thereafter that AICTE on 30.12.1999 issued order recommending 5th Revised Pay Scales and service conditions of teachers of Technical Institution (Diploma) to be made effective from 1.1.1996. The Government in the Rules of 1999 did not provide Career Advancement Scheme for teaching staff of Polytechnic Colleges and the Rules were not amended as per the guidelines of the AICTE. The government applied the 4th AICTE Revised Pay Scale Rules, 1999 with effect from 1.9.1996 instead of 1.1.1986. Petitioners then filed writ petition No. 1362/2001. The Government then introduced Rajasthan Civil Services (Revised Pay Scale to Government Polytechnic Teachers) Rules, 2001 with effect from 1.9.1996 and accordingly the fixation of the pay of the petitioner No. 1 was made vide order dated 26.12.2001 at Rs.8,275 as on 1.9.1996 in the pay scale of Rs.8000-13500. Petitioners was promoted from the post of Lecturer to Senior Lecturer vide order dated 25.10.2007. The Rajasthan Technical Education (Engineering) Service Rules, 2010 were promulgated with effect from 1.9.1996.

The State Government by order dated 1.9.2010 introduced the Career Advancement Scheme with effect from 1.9.1996 for Lecturers, Librarians and PTIs of the Polytechnic Colleges (Engineering), whose services are governed by the Rajasthan Technical Education (Engineering) Service Rules, 2010. While doing so, the Government contrary to clause 9.1 of the AICTE of the Career Advancement Scheme in revised pay scale rules did make a provision to count ad hoc service. As per clause 8.2 for promotion to the scale of Lecturer (Senior Scale), the Lecturer should have six years of service after regular appointment. The relaxation of two years in experience has been provided for those who possess Ph.D. and one year for those with M. Phil/M.E./M. Tech. degree. Similarly, for promotion to the post of Lecturer (Selection Grade), it was provided that a Senior Lecturer/Lecturer (Senior Scale) with master''s degree and experience of five years on the post of Senior Lecturer or Lecturer (Senior Scale) would be eligible subject to consistent satisfactory performance appraisal reports and recommendation of the Selection Committee.

The selection committee was constituted vide order dated 25.1.2011 meeting of which was conducted on 27.1.2011. The said Committee declined to recommend the case of the petitioners on the premise that they have already got the promotion on the post of Senior Lecturer in the year 2007. In doing so, the Committee wrongly interpreted the proviso to clause 1.1 of the order dated 1.9.2010. However, a contextual interpretation has to be given to the said proviso whether incumbent has already been granted promotion on the date he otherwise becomes due for grant of selection scale/senior scale under the Career Advancement Scheme. In other words, it was to be seen whether the petitioners got promotion on the post of Senior Lecturer or not on the date on which they were otherwise entitled to senior scale. As it is, the respondents have introduced the Career Advancement Scheme in different Technical Education Department with delay of 14 years. The effect of the aforesaid erroneous interpretation taken of the section scale was that petitioners started receiving lessor pay qua their three juniors with effect from 1st September, 2010. While their juniors were granted the benefit of Career Advancement Scheme from the post of Lecturer to Lecturer (Senior Scale) in the year 2001 due to fortuitous circumstance that they did not get the promotion till 27.1.2011, the petitioners were made to suffer only because in between they were granted promotion. Double different yardsticks have been adopted by the respondents. Certain employees who were senior to the petitioners like Vivek Saksena and Rajendra Kumar Tank were declined promotion to the post of Senior Lecturer on the ground that they got promotion to senior scale prior to the required date of CAS under scheme. But, such benefit was denied to the petitioners as well, even though they were granted such promotion prior to the date benefit under the Career Advancement Scheme became due to them. Due to not providing clause of counting ad hoc services rendered without break for the purpose of computing the period of service under Career Advancement Scheme, such benefit has been delayed by two years.

Petitioner No. 1 has submitted that the AICTE notification dated 30.12.1999 clearly provided in clause 9.1 for counting the duration of service in a temporary capacity/contract appointment/ad hoc appointment/leave vacancy for promotion to Senior Scale/Selection Grade provided that the tenure of such appointment was one year or more than one year, without any break if it is followed by regular selection. It is argued that division bench of this Court while interpreting the similar provisions with respect to the Lecturers in the Government Colleges for grant of benefit under the Career advancement scheme has directed for counting their ad hoc service and such judgement has even been upheld by the Supreme Court. Reliance in this connection is placed on the division bench judgement of this Court in State of Rajasthan & Anr. v. Dr. Ram Kishan Agarwal & Anr., D.B. Civil Special Appeal (Writ) No. 999/2001 decided on 15.1.2002 and State of Rajasthan & Anr. v. Dr. Suresh Chand Agrawal, D.B. Civil Special Appeal (Writ) No. 1289/1997 decided on 13.5.2004 and judgement of Supreme Court in dismissing the SLP thereagainst vide order dated 14.9.2011. Similar provision exist in respect of Career Advancement Scheme for Lecturers working in the Government Colleges. Reliance is placed on the Circular of the UGC dated 27.11.1990, which inter alia provides that previous service without any break as a Lecturer or equivalent in a university, college, national laboratory or other scientific organisations and as a UGC Research Scientists should be counted for placement of Lecturers in Senior Scale/Selection grade provided that the post was in an equivalent grade/scale of pay as the post of a Lecturer, the qualifications for the post were not lower than the qualifications prescribed by UGC for the post of Lecturer. The incumbent concerned possessed the minimum qualifications prescribed by UGC for appointment as Lecturers. It is contended that when the matter was referred to the Finance Department by the Technical Education Department, they have also endorsed the wrong interpretation of the aforesaid proviso.

The respondents have opposed the writ petition and submitted that Department of Technical Education issued an order on 1.9.2010 under the Rules of 2001 whereunder a senior scale of Rs. 10,000-15,200 and selection grade of Rs.12,000-18,300 has been approved in the meeting of the Selection committee held on 27.1.2011. As per clause 1.1 of the Career Advancement Scheme, the Lecturers who have been promoted on the post of Senior Lecturer after 1995-96 under the Rules of 1973 will not be eligible for benefit of Career Advancement Scheme. It was on that analogy that such benefit has not been granted to Shri Vivek Saxena and Shri Rajendra Kumar Tank. Besides, it has been specifically mentioned that the period of appointment on ad hoc basis shall not be counted for the purpose of senior scale/selection scale. It was therefore as a matter of policy that the department decided not to grant benefit of Career Advancement Scheme to Senior Lecturers.

The controversy involved in this matter is no longer res-integra as this issue has been decided against the respondent upto the Supreme Court following the decisions albeit in the context of the Lecturers working in the Government Colleges of College Education Department. Herein, the only distinction is that the petitioners although working in the corresponding post are not working in College Education Department, but they are employees of the Technical Education Department. It is not in dispute that the terms on which both the said employees have been granted benefit in the scheme of Career Advancement which in terms of the directions issued by the University Grants Commission. The ACITE herein has also adopted the same guidelines. The AICTE notification dated 30.12.1999 has provided for revision of pay scale and associate terms and conditions of the service of Teachers etc.

For the facility of reference clauses 8.2, 9.1 and 9.2 are reproduced hereunder:

"8.2 Lecturer (Senior Scale) - A lecturer will be eligible for placement as Lecturer (Senior Scale), through a process of selection if he/she has:

(i) completed 6 years of service after regular appointment as a Lecturer, with relaxation of 2 years for those with Ph.D. and one year for those with M.Phil/M.E./M.Tech.

(ii) participated in one orientation course/induction training and one refresher course or industrial training of aggregate duration of 8 weeks, or has undertaken other appropriate continuing education or training programmes of comparable quality and duration as may be specified or approved by AICTE. Those with Ph.D. degree would be exempted from these course/training requirements.

8.3 Lecturer (Selection Grade).

A Senior Lecturer/Lecturer (Senior Scale) who has a Masters degree and 5 years'' experience as Senior Lecturer or Lecturer (Senior Scale) and has consistently satisfactory performance appraisal reports will be eligible to be placed as Lecturer (Selection Grade), subject to the recommendation of the Selection Committee.

9.0 Counting of Qualifying Service for Career Advancement--

9.1. Counting of Service within the present Institution-The duration of service in a temporary capacity/contract appointment/adhoc appointment/leave vacancy can be counted for promotion to Senior Scale/Selection Grade provided that :

(a) the tenure of such appointment was one year or more than one year, without any break;

(b) the incumbent was appointed on the recommendations of a Selection Committee constituted in accordance with the prescribed selection procedure as laid down by concerned Board of Governors/Institution''s regulation/Directorate of Technical Education/State Government/Central Government.

(c) the concerned Lecturer possessed the minimum qualifications prescribed by AICTE for appointment as Lecturers.

(d) the incumbent was selected to the regular post in continuation of service in a temporary capacity/contract appointment/ad hoc appointment/leave vacancy without any break.

9.2. Counting of Service Outside the Institution

Previous continuous services, as a Lecturer equivalent in college, national laboratory, or other scientific organisations such as CSIR, ICAR, DRDO etc., or in any Public Sector Industrial Undertaking, may be counted for placement of Lecturers in Senior Scale/Selection Grade provided that:

(a) the posts were in an equivalent grade/scale of pay as the post of Lecturer;

(b) the qualifications for the posts were not lower than the qualifications prescribed by AICTE for the post of Lecturer;

(c) the posts were filled in accordance with the prescribed selection procedures as laid down by the Board of Governors/Institution''s regulations/Directorate of Technical Education/State Government/Central Government.

(d) ad hoc service/service in contract appointment/leave vacancy was of a continuous duration of not less than one year and further provided that:

(i) the incumbent was appointed on the recommendation of a duly constituted selection Committee; and

(ii) the incumbent was selected to the regular post in continuation of the ad hoc/contract/temporary appointment.

(e) the concerned Lecturer has possessed all the minimum qualifications prescribed by AICTE for appointment as Lecturers."

There is no manner of doubt from reading of the aforesaid provisions that duration of service in a temporary capacity/contract appointment/ad-hoc appointment/leave vacancy can be counted for promotion of senior scale/selection grade provided that the tenure of such appointment was 8 year or more than one year, without any break on the recommendation of the selection committee and that the incumbent was selected to the particular post in continuous of service in a temporary capacity/contract appointment/adhoc appointment/leave vacancy without any break.

This was precisely the analogy on which the claim of the Lecturers of the College Education Department was upheld by this Court in successive judgements rendered by single bench and upheld by division bench which judgements were eventually also upheld by the Supreme Court.

In view of above, the writ petition deserves to be succeed and is hereby allowed. The impugned orders dated 27.1.2011 and 11.4.2012 are quashed and set aside. The respondents are directed to count the period of ad hoc service of the petitioners for grant of promotion as Lecturer (Senior Scale) under Career Advancement Scheme and grant them selection grade of the post and pay all consequential benefits counting their ad hoc period of service with interest @ 9% per annum.

Compliance of the judgement be made within three months from the date copy of this judgement is produced before the respondents.